Chinatown Neighborhood Ass'n v. Harris

• Decision Date: 27 July 2015
• Docket Number: No. 14–15781.,14–15781.
• Citation: 794 F.3d 1136
• Parties: CHINATOWN NEIGHBORHOOD ASSOCIATION, a nonprofit corporation; Asian Americans for Political Advancement, a political action committee, Plaintiffs–Appellants, v. Kamala HARRIS, Attorney General of the State of California; Charlton H. Bonham, Director, California Department of Fish and Game, Defendants–Appellees, Humane Society of the United States; Monterey Bay Aquarium Foundation; Asian Pacific American Ocean Harmony Alliance, Intervenor–Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

794 F.3d 1136

CHINATOWN NEIGHBORHOOD ASSOCIATION, a nonprofit corporation; Asian Americans for Political Advancement, a political action committee, Plaintiffs–Appellants

v. Kamala HARRIS, Attorney General of the State of California; Charlton H. Bonham, Director, California Department of Fish and Game, Defendants–AppelleesHumane Society of the United States; Monterey Bay Aquarium Foundation; Asian Pacific American Ocean Harmony Alliance, Intervenor–Defendants–Appellees.

No. 14–15781.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 18, 2015.

Filed July 27, 2015.

Michael Tenenbaum (argued), The Michael Tenenbaum Law Firm, Santa Monica, CA; Joseph M. Breall, Breall & Breall LLP, San Francisco, CA, for Plaintiffs–Appellants.

Kamala D. Harris, Attorney General of California, Douglas J. Woods, Senior Assistant Attorney General, Tamar Pachter, Supervising Deputy Attorney General, Alexandra Robert Gordon (argued), Deputy Attorney General, San Francisco, CA, Attorneys for Defendants–Appellees.

Bruce A. Wagman, Schiff Hardin LLP, San Francisco, CA; Ralph E. Henry (argued), The Humane Society of the United States, Washington, DC, Attorneys for Intervenors–Defendants–Appellees The Humane Society of the United States, Monterey Bay Aquarium Foundation, and Asian Pacific Americans for Ocean Harmony Alliance.

Seth L. Atkinson, Natural Resources Defense Council, San Francisco, CA, for Amicus Curiae Natural Resources Defense Council.

Appeal from the United States District Court for the Northern District of California, William Horsley Orrick III, District Judge, Presiding. D.C. No. 3:12–cv–03759–WHO.

Before: STEPHEN REINHARDT, JOHN T. NOONAN, and ANDREW D. HURWITZ, Circuit Judges.

Opinion by Judge HURWITZ

; Dissent by Judge REINHARDT.

OPINION

HURWITZ, Circuit Judge:

California's “Shark Fin Law” makes it “unlawful for any person to possess, sell, offer for sale, trade, or distribute a shark fin” in the state. Cal. Fish & Game Code § 2021(b). The plaintiffs in this action claim that the Shark Fin Law violates the Supremacy Clause by interfering with the national government's authority to manage fishing in the ocean off the California coast, and the dormant Commerce Clause by interfering with interstate commerce in shark fins. The district court dismissed the plaintiffs' amended complaint with prejudice, and we affirm.

I.

A.

The Magnuson–Stevens Fishery Conservation and Management Act (“MSA”), 16 U.S.C. §§ 1801 –1884, “was enacted to establish a federal-regional partnership to manage fishery resources.”Nat'l Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 749 (D.C.Cir.2000). Under the MSA, the federal government exercises “sovereign rights and exclusive fishery management authority over all fish, and all Continental Shelf fishery resources, within the exclusive economic zone” (“EEZ”), 16 U.S.C. § 1811(a), which extends from the seaward boundary of each coastal state to 200 miles offshore,¹ id. § 1802(11); City of Charleston v. A Fisherman's Best, Inc., 310 F.3d 155, 160 (4th Cir.2002). The MSA expressly preserves the jurisdiction of the states over fishery management within their boundaries. See 16 U.S.C. § 1856(a)(1).

To manage fishing in the EEZ, the MSA calls for the creation of regional Fishery Management Councils (“FMCs”), composed of state and federal officials and experts appointed by the Secretary of the National Marine Fisheries Service (“NMFS”). 16 U.S.C. § 1852(b)(1)-(2). With the cooperation of “the States, the fishing industry, consumer and environmental organizations, and other interested persons,” id. § 1801(b)(5), the NMFS and FMCs develop and promulgate Fishery Management Plans (“FMPs”) to “achieve and maintain, on a continuing basis, the optimum yield from each fishery,” id. § 1801(b)(4).² In the MSA, “optimum yield” means the amount of fish that “will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems.” Id. § 1802(33); see also 50 C.F.R. § 600.310(e)(3).

B.

Shark finning is the practice of removing the fins from a living shark. The primary market for shark fins is to make shark fin soup, a traditional Chinese dish.

Even before the Shark Fin Law was passed, federal and state law prohibited finning in the waters off the California coast. In 1995, the California legislature made it “unlawful to sell, purchase, deliver for commercial purposes, or possess on any commercial fishing vessel ... any shark fin or shark tail or portion thereof that has been removed from the carcass.” Cal. Fish & Game Code § 7704(c) ; see 1995 Cal. Legis. Serv. ch. 371, § 1 (S.B.458). In 2000, Congress added finning prohibitions to the MSA, which, as amended in 2011, make it unlawful to remove the fins from a shark at sea, possess detached fins aboard fishing vessels, transfer them from one vessel to another, and land them onshore. See 16 USC § 1857(1)(P) ; Conservation of Sharks, Pub.L. No. 111–348, § 103(a)(1), 124 Stat. 3668, 3670 (2011); Shark Finning Prohibition Act, Pub.L. No. 106–557, § 3, 114 Stat. 2772 (2000).

In 2011, after finding that shark finning nonetheless continued to “cause[ ] tens of millions of sharks to die each year,” thereby threatening a critical element of the ocean ecosystem, and that “California is a market for shark fin” that “helps drive the practice of shark finning,” 2011 Cal. Legis. Serv. ch. 524, § 1(d), (f) (A.B.376), the California legislature passed the Shark Fin Law, which makes it a misdemeanor to possess, sell, trade, or distribute detached shark fins in California, see Cal. Fish & Game Code §§ 2021(b), 12000.

C.

The plaintiffs are associations whose members previously engaged in cultural practices and commerce involving shark fins. They claim that the Shark Fin Law is preempted by the MSA because it interferes with federal management of shark fishing in the EEZ, and with the federal government's prerogative to balance the various statutory objectives of the MSA. They also claim the law runs afoul of the dormant Commerce Clause by interfering with commerce in shark fins between California and other states, and by stemming the flow of shark fins through California into the rest of the country.³

In August 2012, the plaintiffs moved the district court to preliminarily enjoin the enforcement of the Shark Fin Law. The district court denied the motion, and we affirmed, agreeing that the plaintiffs had failed to show a likelihood of success on the merits of their preemption and dormant Commerce Clause claims.⁴ See Chinatown Neighborhood Ass'n v. Brown,

539 Fed.Appx. 761, 762–63 (9th Cir.2013) (mem.). On December 9, 2013, the plaintiffs filed an amended complaint. The district court granted the defendants' motion to dismiss with prejudice on March 24, 2014.

II.

We have jurisdiction over this appeal under 28 U.S.C. § 1291. We review a district court's grant of a motion to dismiss de novo, Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.2009), and the denial of leave to amend for abuse of discretion, Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1385 (9th Cir.1988).

III.

The MSA does not have an express preemption provision. Even absent such a provision, however, a federal statute has preemptive effect if it conflicts with state law. This can occur when “compliance with both federal and state regulations is a physical impossibility,” Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), or when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Arizona v. United States, ––– U.S. ––––, 132 S.Ct. 2492, 2501, 183 L.Ed.2d 351 (2012).⁵ In assessing the preemptive force of a federal statute, the purpose of Congress, as “discerned from the language of the pre-emption statute and the statutory framework surrounding it,” is the “ultimate touchstone.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485–86, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (quotation marks omitted).

A presumption against preemption applies generally, but is especially strong when, as here, “Congress has legislated in a field which the states have traditionally occupied.” McDaniel v. Wells Fargo Invs., LLC, 717 F.3d 668, 674 (9th Cir.2013) ; see also Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 426, 56 S.Ct. 513, 80 L.Ed. 772 (1936) (explaining the historic control of states over fish in state waters); N.Y. State Trawlers Ass'n v. Jorling, 16 F.3d 1303, 1309–10 (2d Cir.1994) (“The interest of a state in regulating the taking of its fish and wildlife resources has been long established.”). Thus, the California statute cannot be set aside absent “clear evidence” of a conflict. Geier v. Am. Honda Motor Co., 529 U.S. 861, 885, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000) ; see also McClellan v. I–Flow Corp., 776 F.3d 1035, 1039 (9th Cir.2015) (“[T]he historic police powers of the States were not to be superseded unless that was the clear and manifest purpose of Congress.” (alteration omitted)).

A.

Although the plaintiffs argue the Shark Fin Law interferes with the federal government's authority under the MSA to manage shark fishing in the EEZ, they do not identify any “actual conflict between the two schemes of regulation.” Fla. Lime, 373 U.S. at 141, 83 S.Ct. 1210. To be sure, the California statute restricts certain economically viable uses for sharks that are lawfully harvested from the EEZ and landed in California. But the MSA does not mandate that a given quantity of sharks be harvested from the EEZ—and even if it did, detached fins are not the only viable use for harvested sharks. As the plaintiffs recognize, “[t]he use of approximately 95% of any legally fished shark for shark oil, shark meat, shark skin, etc. is still permitted” under the California regime. The plaintiffs point to no “clear and manifest” intent of Congress to preempt regulation such as the Shark Fin Law, McClellan, 776 F.3d at 1039...